VIRGINIA: State Attorney General To Join Olson & Boies In Marriage Ban Lawsuit

Virginia Attorney General Mark Herring, who won election in November by a 0.04% margin, will join Prop 8 victors Ted Olson and David Boies in their bid to strike down his state's ban on gay marriage.

The action will mark a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices. Herring’s predecessor, Republican Ken Cuccinelli II, adamantly opposes gay marriage and had vowed to defend Virginia’s constitutional amendment banning such unions, which was passed in 2006 with the support of 57 percent of voters. Herring, too, had voted against same-sex marriage eight years ago, when he was a state senator. But he has said that his views have changed since then and that on Thursday he will file a supportive brief in a lawsuit in Norfolk that challenges the state’s ban, said two people familiar with his plans. He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court. The attorney general thinks that is unnecessary, the official said. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel.

Oral arguments in the case Herring will join are scheduled for next week. A separate suit filed by the ACLU is also in progress.

UPDATE: The Human Rights Campaign reacts.

In an announcement today, Virginia Attorney General Mark Herring will say that his office will join the growing consensus of opinion in arguing that the state ban on marriage for lesbian and gay couples should be overturned. There are two cases in federal court challenging the Commonwealth’s marriage amendment and Herring is urging the courts to rule for the plaintiffs challenging that ban. In doing so, Herring reversed the position of his predecessor, Ken Cucinelli, who had argued strenuously to maintain the ban on marriage for same-sex couples. “Attorney General Herring joins the growing legal and public consensus that barriers to marriage for lesbian and gay couples do not protect anyone and only harm Virginia families," said Human Rights Campaign President Chad Griffin. “This courageous stand on behalf of the Commonwealth plants Virginia firmly on the right side of history."

UPDATE II: The ACLU and Lambda Legal react in a joint press release.

“Today actions by Virginia’s chief legal officer continue America’s evolution on this issue. More and more Americans are embracing the idea that all loving and committed couples should have access to the protections that only come with marriage,” said Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “With the attorney general on our side, we hope that we can soon count Virginia among the 17 other states where same-sex couples have the freedom to marry.” “It is a critical and important development when the attorney general — the keeper of the federal and state constitution in the commonwealth -- joins us in arguing that barring same-sex couples from marriage is clearly unconstitutional,” said Greg Nevins, counsel in Lambda Legal’s Southern Regional Office based in Atlanta. “We will continue to work to remove all remaining impediments so that Virginia can join the growing number of states where same-sex couples in loving, committed relationships are treated equally and can enjoy fully the benefits and responsibilities marriage provides."

UPDATE III: Herring spoke to NPR this morning.

“I had voted against marriage equality eight years ago back in 2006 even though at the time I was speaking out against discrimination and ways to end discrimination and I was wrong for not applying it to marriage,” Herring told NPR’s “Morning Edition” on Thursday. “I saw very soon after that how that hurt a lot of people and it was very painful for a lot of people.” “As attorney general I cannot and will not defend laws that violate Virginians’ rights,” Herring said. That’s what I have pledged over and over to do, is to put the law and put Virginians first. … It’s about what the law requires here, and we have concluded, I have concluded, that the law here is unconstitutional, and I think the Supreme Court … would find the law unconstitutional.”

UPDATE IV: AFER reacts via press release.

The American Foundation for Equal Rights (AFER), the sponsor of Virginia’s leading marriage equality case, Bostic v. Rainey, today hailed the decision by the Commonwealth’s Attorney General, Mark Herring, that he will actively oppose the state’s onerous and discriminatory Constitutional ban on marriage equality. Attorney General Herring’s statement comes exactly one week prior to the first hearing in the Virginia marriage equality case of Bostic v. Rainey, which will be held at the U.S. District Court for the Eastern District of Virginia before Judge Arenda L. Wright Allen on Thursday, January 30, 2014 at 9 a.m. “This is a great day for the Commonwealth of Virginia,” said Plaintiffs’ lead co-counsel Theodore B. Olson. “Virginia’s marriage laws are needlessly mean-spirited and cause harsh and gratuitous pain and humiliation to gay and lesbian Virginians and their families. Attorney General Herring’s actions today have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness. We are grateful for his leadership and look forward to working with him to strike down Virginia’s odious marriage ban.”